Date: March 22, 2016
Historically, the law of reprisal gave an individual the power to seek restitution against another for a private loss (e.g., if an English merchant had goods stolen in France, the merchant would be granted a letter of marque and reprisal by the English government, which would grant him the right to “capture” a French merchant vessel to compensate him for that loss).
Later, during the late 1700s, a letter of marque was no longer used to right a private wrong but as an instrument of the state to resolve international disputes without having to use public funds. Eventually, letters of marque were predominantly used when one state wanted to punish another for a deliberate violation of international law or, in other words, to impose a sanction.
During the 17th and 18th centuries, when most wars were conducted on the high seas, letters of marque were extremely common. Unlike pirates, who enjoyed no legal backing, the grantee of a letter of marque, or privateer, would act on direct behalf of the government. The letters of marque came with certain restrictions on the privateer (e.g., restricting attacks to only French ships) and any property seized by the privateer would have to be taken back to the port of origin where the validity of the capture would be decided by a court.
Because letters of marque were so frequently granted, it is no surprise that the Founding Fathers decided to provide for them in the Constitution. Article 1, Section 8 states, that “Congress shall have Power To grant Letters of Marque and Reprisal”. Letters of marque can be invoked in times of war and peace. It should be noted that Congress has not exercised this power for over 150 years.
Why did the United States discard this method of international sanction so long ago? Is it a method should be considered for revival today?
Evolution of letters of marque and reprisal
The first known leader to use privateers was King Henry III of England in 1243. By the 1500s, letters of marque were being used throughout Europe as an efficient way of sanctioning neighboring countries. It was not until the French and Indian War in 1756 that private individuals realized the money making potential of acting as a privateer.
Privateers played a vital role in the Revolutionary War of 1776, causing disruption to trade and even taking part in the first battle fought by an American ship in foreign waters. A decade later, in the War of 1812, Americans again compensated for their limited naval resources by turning to privateers to counter attacks from the English Navy.
In the years following the War of 1812, there were fewer discussions regarding letters of marque, until the Crimean War (1854-1856), after which the belligerents decided that privately funded ships were maintained mainly for personal gain and could not be effectively regulated. As a result, Britain, France, Russia, Prussia, Austria, Sardinia, and Turkey entered into an agreement known as the Declaration of Paris, which. simply states, “Privateering is and remains abolished”. The United States refrained from signing, and only informally agreed to abide by its principles. In theory, this reserved the right of the United States to exercise powers under Article 1, Section 8 and appoint privateers in the future if needed.
Death of the letter of marque: issues of enforceability
American colonists were never blind to the risk from the self-serving motives of a privateer. Many times, privateers would put their own earnings above the objectives of their government. At the time, when America had limited resources, the government was willing to trade some control in return for free assistance with the war effort.
In some respects, privateers were held accountable. The issuing government would monitor privateer activities by providing restrictions on the provisions of capture as well as impose punishments for violations. These would generally be pecuniary in nature, such as forfeit of a sizeable security bond and liability for damages. Special admiralty courts, first created by the Continental Congress in 1777, were established to handle these matters.
In spite of the many benefits of letters of marque, certain problems arose. These included: attacks on non-belligerent neutral ships as well as seizure of goods beyond the scope of the grant. Also, these violations often went unpunished due to distance, lack of ascertainable evidence, or the government simply turning a blind eye. Unlike today’s targeted economic sanctions, a letter of marque was relatively broad in scope. The restrictions on a letter of marque would usually not extend further than to generally prohibit attacks on neutral ships. Having such a wide reaching scope, there would not surprisingly be room for abuse and bad faith.
By the late 18th century, the number of privateers had grown exponentially. In fact, by 1776, their number equaled the number of soldiers in George Washington’s armies! This gave rise to cases involving violations by privateers. In Penhallow v. Doane (1795), the first case to come before the U.S. Supreme Court, Justice Paterson highlighted the importance of accountability:
“Every body must be amenable to the authority under which he acts. If he accepts from Congress a commission to cruize against the enemy, he must be responsible to them for his conduct…those who have unjustly, and upon a sentence determined to be erroneous, received the property or its value to their own use, must in justice be accountable; otherwise form, which ought to be the handmaid of right, might prove its treacherous destroyer”.
This ruling not only reminded privateers that they were fully accountable to the federal government for acts committed abroad, but also attempted to reassure other nations that the United States government accepted full responsibility for the actions of their privateers. Unfortunately, notwithstanding the goodwill of the American government, the growing number of privateers proved harder and harder to properly regulate.
Despite this lack of control, the United States has since failed to abolish letters of marque, though this flies in defiant opposition to the international majority that has many times attempted to globally prohibit the use of privateers. The U.S. did not ratify the Economic Exclusion Zones (EEZs), which were established during the United Nations’ Conventions on the Law of the Sea (UNCLOS) in 1958-1982 nor the Suppression of Unlawful Acts Against the Safety of Maritime Navigation of 1992. It is not clear why Congress has decided not to abolish letters of marque, but it may feel these powerful punitive instruments could still potentially be used in the future as a means of sanction.
Rise in security threats, piracy spawn rise in sanctions, thoughts of ‘marque’
The resurgence of global piracy and a dramatic rise in worldwide security threats in the last two decades have brought economic sanctions and their effectiveness to the forefront of international legal debate. Today, piracy and corruption cost companies, governments, and consumers billions of dollars. As a result, there is increasing pressure on the United States and the world to develop better strategies to counteract these threats. This is not so simple. Our enemies are no longer countries with delineated economies nor clearly marked borders.
Economic sanctions are one of the only forms of recourse that exists today to combat these international threats. The United States uses economic and financial sanctions more than any other country. The UN and the EU, supported by the global police agency, Interpol, also impose sanctions but have no real independent means of enforcement and greatly rely on the resources of member states. As these resources are lacking, such sanctions are believed by many to be largely ineffectual to counteract threats of piracy and terror.
What the future could hold
Many suggest that the letter of marque, or something like it, be resurrected. This would act to supplement military force by commissioning private parties, much in line with the concept of privateering. In 2001, the former U.S. Congressman Ron Paul suggested using letters of marque to provide locals in Afghanistan an incentive to find Osama bin Laden and other members of Al Qaeda. What are the advantages and disadvantages of bringing back this all but lost American naval tradition?
Proponents of the letter of marque argue that contemporary security threats demand immediate and pinpointed action, which is more easily done by private individuals than by military force. This would alleviate constrained military budgets, they say, and provide insight from locals not normally available, thus more effectively targeting enemies of the state.
Opponents say privatization of the army in any way could lead to corruption and actions by private individuals that may not be entirely altruistic. This would also have no way of being properly controlled. Also, resurrecting letters of marque could send a clear message to international allies that our promises to uphold the Declaration of Paris do not amount to much.